Bundestag report finds flaws in the oversight of European intelligence services in The Hague

The Federal Ministry of the Interior is using every possible means to keep Parliament from learning details of the cooperation between European domestic intelligence services in The Hague. The official reason is an internal agreement between the services. Yet the Federal Government has an obligation to furnish parliamentarians with information, even when there is a legitimate interest in maintaining secrecy.

The report indicates that this secretiveness is legally questionable. It states that, although the Federal Government is permitted to safeguard its interest in maintaining secrecy, it must also seek ways of meeting the parliamentarians’ need for information.

Operational cooperation since the summer of 2016

For the past year, the Federal Office for the Protection of the Constitution has been part of an “operational platform” in The Hague with 29 other European intelligence services. The platform is a real-time information system and includes a shared counter-terrorism database. The services involved send liaison officers to The Hague. While the system is physically hosted by the AIVD, the domestic intelligence service of the Netherlands, it belongs to the Counter-Terrorism Group (CTG).

The CTG was set up in 2001 by the “Club de Berne”, an informal group of domestic intelligence services of EU Member States, Norway and Switzerland. Neither the CTG nor the Club de Berne are part of the European Union, which has no mandate for coordination of the intelligence services.

Although the Federal Office for the Protection of the Constitution has been attending meetings of the Club de Berne for decades, until recently the group only reached strategic agreements. The new operational cooperation was regulated in the summer of 2016 by means of a hastily inserted provision in Germany’s Federal Act on the Protection of the Constitution.

Secrecy due to the “third party rule”

In roughly a dozen parliamentary initiatives over the past two years, Members of Parliament had fruitlessly requested information about the CTG, the Club de Berne and the new “operational platform” in The Hague. For example, it is completely unclear which individuals are included in the CTG database, and subject to what conditions. The specific location, the nature of the database, the data fields included and the search and analysis tools used also remain secret. There are no details about the cooperation between the intelligence services, the tasks which have been taken on, internal working groups, costs, or the internal organisational structure.

This makes it impossible to determine whether the centre’s work is limited to “Islamist terrorism”, as claimed. Another important question is which services are involved. If they have police powers, the Federal Office for the Protection of the Constitution would not have the right to exchange information with them. This is due to Germany’s strict constitutional separation between law enforcement agencies and national intelligence services after the Gestapo in Nazi Germany .

The reason given by the Federal Government for maintaining secrecy about what is taking place in The Hague is the “third party rule”. This is a “generally recognised rule of conduct in international cooperation between security and intelligence services”. No shared information is supposed to be passed on to third parties. The country providing the information retains control of it, to ensure that no inferences can be drawn about the source.

Expert report: There is no blanket right to refuse to provide information

According to the Federal Ministry of the Interior, even the mere existence of cooperation between intelligence services falls under the third party rule. The Bundestag’s Research Services take a different view of the law, however, and point out that the principle of the third party rule does not constitute an absolute prohibition against passing on information, but should instead be seen as a “ban unless permission is granted”:

The Federal Government does not have a blanket right, on the basis of these constitutional requirements, to refuse, by citing the third party rule, to provide information about all activities in the framework of the CTG, as set out in the request commissioning this report.[…]As stated above, the Federal Constitutional Court does not classify the third party rule as a mandatory legal norm. In such circumstances, the Federal Government must therefore seek the release of the information from the country supplying it. If these efforts fail, it is also necessary to weigh the Federal Government’s ability to act in terms of foreign and security policy against Parliament’s interest in the information.

Ministry never requested release of information

Simply put, this means that the Federal Government has an obligation to try to reach an agreement with the country which shared the information in The Hague. The country in question can refuse to allow the information to be passed on. Nonetheless, the Federal Government must check in every individual case whether this prohibition also extends to the Parliamentary Oversight Panel.

According to the Federal Ministry of the Interior, “Parliament’s interest in the information was weighed against the interest in retaining the ability to act in terms of foreign and security policy” in relation to all parliamentary questions. The Ministry did not initially say in which cases it actually requested that the information be released.

Only in response to a further question has it now come to light that the Federal Government never made any effort to inform parliamentarians about the domestic intelligence service’s activities abroad. The Federal Ministry of the Interior decided at its own discretion not to send the required requests for the release of information. According to the Ministry, as the requests touched upon the “core area of intelligence service working methods”, they would have had “no prospect of success”.